Challenges to drug-impaired driving charges likely to clog up Canada’s courts, police warn

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OTTAWA — At a time when the government is working to reduce delays in the court system, police are warning that its new legislation on impaired driving is likely to cause a dramatic spike in litigation and constitutional challenges.

Impaired driving is already one of the biggest drains on court resources, responsible for about 10.1 per cent of cases before Canadian courts, according to a Stats Canada brief prepared for the Senate legal affairs committee.

Mario Harel, president of the Canadian Association of Chiefs of Police, told the committee on Thursday that Bill C-46 will cause litigation to skyrocket around impaired driving. Speaking in French, he predicted an “exponential” increase in court challenges, and noted the legislation would also mean police officers will have to come to court more often to explain what happened.

Drug-impaired driving is already an offence in Canada. Police officers can screen drivers using a standard field sobriety test at the roadside (the test can include counting backwards or standing still on one leg), then later fully test for drugs with specially-trained Drug Recognition Enforcement officers or a toxicology report.

But the new legislation creates a legal limit for THC levels in a driver’s blood and allows for the use of roadside screening devices that test saliva. Justice officials have acknowledged the science is still being refined on how to reliably screen drivers for drug impairment, which means the devices are likely to face heavy scrutiny from defence lawyers once put into use. Lawyers are also likely to challenge whether the legal THC limits truly reflect how impaired a driver is.

On top of that, the Stats Canada document says drug-impaired driving cases currently take about twice as long on average to litigate in court than alcohol-impairment cases do, and are less likely to receive a guilty verdict. However, that could change once legislation is passed that explicitly addresses cannabis impairment.

Bill C-46 also substantially rewrites the Criminal Code provisions around alcohol-impaired driving. Some of the changes are meant to improve the efficiency of prosecuting cases (for example, by removing some defences a driver can use), but last fall, experts warned MPs studying the bill that the changes would cause an avalanche of litigation in the short term.

In its submission, the Canadian Bar Association said the Criminal Code overhaul “would bring a substantial amount of uncertainty into an area of well-established, heavily litigated law … further burdening our criminal justice system at a time when system delays have become critical.”

Another provision in the bill creates mandatory breath testing for drivers, meaning police would no longer need a reasonable suspicion a driver has been drinking in order to compel a breathalyzer test. The mandatory tests are almost certain to prompt a constitutional challenge.

This all comes as the justice ministry is preparing sweeping reforms to the criminal justice system to alleviate trial delays, following a controversial Supreme Court of Canada ruling, R. v. Jordan, that established general deadlines for how long trials can be delayed before charges are tossed. The government’s justice reforms are expected to be announced in March or April.

The mandatory tests are almost certain to prompt a constitutional challenge

The overhaul of impaired driving laws was introduced at the same time the government announced marijuana legalization in the spring of 2017. In October, the government promised to spend $36.4 million over the next five years on education campaigns around marijuana use and drug-impaired driving.

The police officers speaking to the Senate committee on Thursday — including officers from the chiefs association, the Ottawa Police, the Gatineau Police, and the Canadian Police Association — said the public awareness campaigns will be crucial in their fight to keep drug-impaired drivers off the roads.

They pointed out they’ve already been fighting this battle for years, so even if the roadside screening devices aren’t available for use right away, officers will still be actively searching out drug-impaired drivers.

“We are already doing drug-impaired driving investigations, and we have seen an increase over the last couple of years across the country in terms of the types of cases where we’re pursuing criminal charges,” said Chuck Cox, co-chair of the CACP Traffic Committee.

The committee study of C-46 is expected to continue for a few more weeks with expert testimony, and then senators will consider amendments. Meanwhile, on Thursday the Senate set out a timeline for Bill C-45, the bill that legalizes marijuana, with the aim of passing it by June 7. Marijuana would likely become legal two to three months after C-45 passes.

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